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1989
A Skeptical Look at Contemporary Republicanism
Terrance Sandalow
University of Michigan Law School, [email protected]
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Sandalow, Terrance. "A Skeptical Look at Contemporary Republicanism." Fla. L. Rev. 41 (1989): 523-44.
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A SKEPTICAL LOOK AT
CONTEMPORARY REPUBLICANISM
Terrance Sandalow*
Liberal garb has become as unfashionable in academic circles as it
has in political life. A generation of historians has worked to undermine
Louis Hartz's thesis that American political thought is rooted in a
Lockean consensus. Philosophers challenge the premises of liberalism
and its coherence. Sociologists decry liberalism's influence on individual
character and the quality of public life. Feminist theorists condemn
the liberal conception of equality and the distinction liberalism draws
between public and private life. And legal scholars, drawing on all
these and more, seek alternatives to liberalism on which to ground
the legal order.
The moving force behind this flight from liberalism is antipathy
toward its emphasis upon the individual, its asserted failure to recognize the ties that bind humans to one another. Liberals, its critics
complain, conceive of society as atomistic and thereby reduce political
life to "a set of instrumental and strategic interactions among otherwise unconnected individuals."1 A more sympathetic reading, one more
sensitive to the full range of views within the liberal tradition, might
2
yield a very different account of the presuppositions of liberalism.
Contemporary American pluralism, for example, rests upon the understanding that individuals are bound together not merely by ties of
interest, but by affinities of experience and shared ideals. From the
perspective of the critics, however, pluralism is indistinguishable from
other, more individualistic strands of liberal thought, for it merely
substitutes a molecular for an atomistic conception of political life.
What the critics seek is a more embracing unity, a political theory
that embodies the ideal that was once called "fraternity" and is now
more commonly referred to as "community." A similar quest led earlier
generations of intellectuals to socialism, but the twentieth century has
*Edson R. Sunderland Professor of Law, The University of Mfichigan. A.B., 1954, University
of Chicago; J.D., 1957, University of Chicago.
1. W. SULLIVAN, RECONSTRUCTING PUBLIC PHILOSOPHY 103 (1982).
2. For brief critiques of the communitarian understanding of liberalism, see Epstein, Modern
Republicanism - Or the Flight From Substance, 97 YALE L.J. 1633, 1636-39 (1988); Herzog,
Some Questions for Republicans, 14 POL. THEORY 473, 480 (1986); Simon, The New Republicanism: Generosity of Spirit in Search of Something to Say, 29 W i.& ARY L. REV. 83,
86-90 (1987); see also infra text accompanying notes 45-46;
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not been kind to socialist theories, and as it draws to a close, their
attractive power is greatly diminished. Still, the underlying impulse,
the felt need for a theory that adequately expresses human "connectedness," remains. A growing number of scholars have been led by
that impulse to an interest in 'the republican tradition," arguing that
it offers resources for correcting the deformities they perceive in contemporary life and for which they hold liberalism responsible.
Republicanism is a mansion with many rooms, and its modem
interpreters emphasize varying possibilities within it, but common to
all is the vision of a politics that recognizes and seeks to strengthen
the social bonds within a political community. Within the limits set
by that vision differences abound, just as differences exist among
liberals concerning appropriate political foundations for individual freedom. Republican thought thus functions, as Professor Michelman has
written, "less as canon than [as] ethos, less as blueprint than as conceptual grid, less as settled institutional fact than as semantic field
''
for normative debate and constructive imagination. 1
The breadth and intensity of contemporary interest in republican
ideas reflect a deep desire for a greater sense of community than
currently exists in the United States. Still, a deeply felt need does
not necessarily translate into a political theory of contemporary relevance or even a useful way of talking about current issues. Despite
the importance of republicanism in the history of Western political
thought, the effort to find within it resources for addressing issues of
contemporary life seems a bit odd - or, to be more precise, anachronistic. Republicanism was rooted in an intellectual and social milieu vastly
different from our own. It was premised upon a moral epistemology
and an organic conception of society that few moderns can accept. Its
expositors assumed -
indeed, often insisted - that it was suited only
to small, homogenous populations occupying a limited territory. Republican thought was generally anticommercial, often hierarchical, and
in some versions depended upon a martial citizenry as well. Its intellectual and social presuppositions were, in brief, precisely the conditions of life and thought that separate modern and premodern times.
My purpose in this brief essay is to raise a number of questions
about the contemporary relevance of political ideas rooted in a world
so different from the one we inhabit. Although the turn to republicanism represents an effort to redirect the course of American life,
limits exist beyond which change is implausible. We are not about to
3. Michelman, Foreword: Traces of Self-Government, 100 HARV. L. REv. 4, 17 (1986)
[hereinafter Michelman, Traces].
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CONTEMPORARY REPUBLICANISM
reestablish the Greek polis or the Italian city-state. The commercial
republic that the federalists foresaw has existed for well over a century, and though many changes in the economic order are within the
realm of plausible proposals for reform, the abandonment of a commercial economy is not among them. Similarly, individualism - understood, minimally, to mean freedom to transcend social roles iMpursuit
of individually determined ends - is so deeply embedded in the American character and national ideals that it must be recognized as a
constraint upon proposals to refashion political life within a republican
mold. Among the questions the new republicans must confront is
whether republicanism can find a place within the constraints imposed
by these and other circumstances and commitments associated with
modernity.
To ask questions about the contemporary relevance of republican
ideas is, inevitably, to suggest skepticism that affirmative answers
can be given to those questions. Skepticism is not proof, however,
and I shall not try to demonstrate that affirmative answers cannot be
developed. My purpose is merely to draw attention to a number of
issues that, though they have perhaps been noticed by republican
writers, have as yet received inadequate attention. The questions are
not equally relevant to all the arguments recently made in the name
of republicanism, 4 but because my concerns are with the broad themes
of a movement, I shall not pause for the qualifications that would be
necessary were I attempting a more comprehensive and detailed survey of neo-republican arguments.
I.
The central term in the lexicon of the new republicans is "the
public interest," a term apparently synonymous with "the common
good," "the general welfare," and a number of other phrases that are
at times employed as substitutes.5 Despite its importance, republican
theorists have given scant attention to defining the concept. The reason
for the neglect cannot be that "the public interest" has a well understood meaning. The literature of political theory is replete with variant
4. Whether, or to what extent, these arguments can be brought within the tradition of
republican thought is a distinct issue that I leave to political theorists and historians of political
thought.
5. Another frequently used term, "public value," appears to be derivative, denoting a value
that (legitimately) may be regarded as a constituent of the public interest. Republican writers
seem to use the term as a way of conveying that the public interest (1) is not necessarily unitary
and (2) that its content may be contested.
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meanings; indeed, doubt has often been expressed that the concept
has or can be given coherent meaning.6 Until it is given some coherent
meaning, however, we cannot know what republican politics are supposed to be about or what considerations would legitimately enter into
political decisions in a republican regime. The need is especially pressing for those who, like Professor Sunstein, propose to invest the
concept with constitutional significance. 7
In suggesting the need for a definition of "the public interest," I
do not mean that republicans owe us an account of its content. Republican theorists generally agree that the content of the public interest
emerges from an appropriately constituted public process, and they
are entitled to maintain that they are no more able than the rest of
us to give substantive meaning to it before such a process occurs.
What they do owe us is a definition that will enable us to recognize
"the public interest" when we see it, one that will permit us to ascertain what kinds of arguments they would permit in the political arena
and what kind of justification they would require for legislation. Providing such a definition is, I think, more difficult than republicans
have acknowledged.
A definition advanced by Professor Sunstein provides a useful introduction to the difficulties. A "public value," Sunstein has written,
"can be defined as any justification for governmental action that goes
beyond the exercise of raw political power." 9 But that definition is
inadequate for republican purposes. It would permit legislation to be
justified on the ground that the legislation maximizes the sum of
affected private interests. Familiar difficulties stand in the way of
making any such determination, but we need not pause over them
because the possibility of such a justification poses a more significant
problem for Sunstein's definition. A central ground for differentiating
liberal from republican thought, as Professor Michelman writes in his
Dunwody lecture, is that "republicanism does, while liberalism does
not, take seriously the idea of a common, a truly common, interest
or good - an 'autonomous public interest independent of the sum of
individual interests'." 1° A definition of the public interest that can be
6.
See, e.g., D. TRUMAN, THE GOVERNMENTAL PROCESS, 50-51 (1951); Sorauf, The Con-
ceptual Muddle, in NoMos V: THE PUBLIC INTEREST 183 (1962).
7. See Sunstein, Interest Groups in American Public Law, 38 STAN. L. REV. 29 (1985).
8. See supra note 5.
9. Sunstein, Naked Preferencesand the Constitution,84 COLu . L. REV. 1689, 1694 (1984).
10. See Michelman, Conceptions of Democracy in American ConstitutionalArgument: Voting Rights, 41 FLA. L. REV. 443, 445 (1989) [hereinafter Michelman, Voting Rights] (quoting from
Horwitz, Republicanism and Liberalism in American ConstitutionalThought, 29 Wm. & IARY
L. REV 57, 67 (1987)).
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CONTEMPORARY REPUBLICANISM
satisfied by a utilitarian calculation thus sacrifices a central republican
claim, that there are social interests to which politics should attend
that transcend the sum of individual interests. Moreover, if "the public
interest" is merely shorthand for "the aggregation of private interests," then it may be that bargaining - whether in the market or
in the political arena - is at times the best way of achieving it.
Republicans have, however, been insistent that the public interest,
as they conceive it, is not the consequence of private bargains, but
the subject of public deliberation.
A quite different conception of the public interest, one that on the
surface seems closer to what republicans have in mind, is suggested
by President Kennedy's famous inaugural plea: "ask not what your11
country can do for you - ask what you can do for your country."
Kennedy did not, it is worth noting, ask that citizens consider what
they might do for each other - he was not, in other words, making
a plea for altruism 2- but what they might do for their country, as
though it has interests that in some sense exist independently of
theirs. A similar idea seems implicit in the recurrent suggestion that
the interests of individuals should at times be sacrificed to the interests
of the nation. But on the assumption that "the interests of the nation"
is not merely a way of referring to the sum of its citizens' private
interests, a conception of the public interest that has already been
ruled out, what can it mean? A nation is a collectivity. It cannot have
purposes -
and, therefore, interests -
in the same sense that indi-
viduals do.
In some settings, to be sure, we have no difficulty attributingto
a corporate body or other collectivity interests distinct from those of
its members. It is, for example, perfectly intelligible to say that the
best interests of a university would be served by eliminating several
departments and employing the savings to provide added support for
other departments. Such a claim might rest on a calculation that the
reallocation would serve the interests of affected faculty and students,
taken one by one. But it might also and more pertinently rest on the
ground that the objects of the university, conceived independently of
11. See A.
SCHLESINGER, JR.,
A THOUSAND
DAYS: JOHN
F. KENNEDY
IN THE WHITE
HousE 6 (1965).
12. Republicans at times seem to object to liberalism on the ground that it breeds and
perhaps calls for selfishness, as though all liberals are disciples of Mandeville. See B. MIANDEVILLE, THE FABLE OF THE BEES (1729). It should be apparent, however, that altruism is
entirely consistent with liberal principles. Even the most hard-boiled welfare economist appreciates that an individual's utility function may include the welfare of another. If altruism is
the goal, republicanism need not be the path. See Simon, supra note 2, at 87-89.
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faculty and students, would be promoted by the reallocation. One
might, for example, believe that universities exist to advance knowledge and, therefore, that it would be in best interests of the university
to direct its resources to those disciplines in which the most important
advances are to be anticipated. On such a view, the university has
interests genuinely independent of the interests of its faculty and
students; indeed, the latter appear to be merely instruments for fur13
thering its ends.
It is difficult to conceive of the relationships between a nation and
its citizens in the same way - difficult, but regrettably, not impossible.
Conceptions of an autonomous national purpose and the idea that citizens achieve fulfillment as individuals in contributing to that purpose
are not unknown to history. The examples are, however, not of a kind
likely to inspire emulation by republicans any more than by the rest
of us. The idea that citizens are merely instruments in the service of
an overriding national purpose that exists independently of their interests is, in any event, so alien to American history and ideals that
any
those recently attracted to republicanism are unlikely to have
''
such purpose in mind when they refer to "the public interest. 14
13. As the illustration suggests, the attribution of any such purpose to the university would
be contestable. Competing conceptions of its proper goals might also be advanced, and deliberation would presumably be required to choose, or achieve an accommodation, among them. An
interesting question arises at this point: Who is entitled to participate in the deliberations? If
students and faculty are merely instruments of the university's purposes, it seems odd to permit
them to deliberate about those purposes. A debate among instruments about which can best
serve given ends is potentially fruitful, but there seems no reason to suppose that it can
contribute to a determination of what the ends should be.
The question is, of course, rather more significant if the public interest is defined in terms
of analogous national purposes. If citizens are merely instruments of such purposes, who is
entitled to participate in decisions concerning rival conceptions?
14. But see Horwitz, supra note 10. Although Professor Horwitz's discussion is explicitly
directed only to the place of republican ideas in American legal history, the obvious enthusiasm
with which he refers to "an autonomous public interest," see id. at 68, and "a substantive
conception of the public interest," see id. at 64, suggests that he may be attracted to a conception
of the public interest that I have perhaps dismissed too casually in the text. Without some
elaboration of the idea, however, it is difficult to know what Horwitz has in mind.
The idea that a nation has needs or purposes distinct from those of its citizens as individuals
has an analogue in the recurrent references to a "general will" distinct from the particular wills
of individuals. As I write, election returns from Poland reveal a stunning defeat for the ruling
Communists. A spokesman for the government commented that, "[tjhe question remains open
whether the sum of these individual decisions is an expression of the real collective will of the
society. I think not." N.Y. Times, June 7, 1989, at A13, col. 1. Just what is meant by such
invocations of the "general will" remains as mysterious today as it was when Rousseau first
proposed the idea in The Social Contract.See generally J. ROUSSEAU, THE SOCIAL CONTRACT
AND DISCOURSES (New Amer. ed. 1950) (1762).
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CONTEMPORARY REPUBLICANISM
Within the American political tradition, no account of the public
interest is likely to prove acceptable unless it counts the interests of
individuals among its defining characteristics or in some other way
recognizes those interests as ends worthy of achievement in their own
right. One candidate for such an account is the argument advanced by
Robert Paul Wolff some years ago in The Poverty of Liberalism.15
Among the interests that individuals can have, Wolff argued, are those
he labeled "affective," "productive," and "rational" community.16 At
the heart of each is a desire for shared experience. "Affective community," as Wolff explains, "is the reciprocal consciousness of a shared
culture... it is the mutual awareness on the part of each that there
are others sharing that culture, and that through such mutuality we
are many together rather than many alone."'17 Similarly, "productive
community" is mutual awareness of "the satisfaction which comes specifically from working with others in the pursuit of a common goal
....
,"18 And "rational community" is "a reciprocity of consciousness
among morally and politically equal rational agents who freely come
together and deliberate with one another for the purpose of concerting
their wills in the positing of collective goals and in the performance
of common action[s]." 9 Because the interests he describes are not
merely in the products of culture, work, or deliberation, but in the
experience of sharing, it seems fair to conclude, as Wolff does, that
he has given content to the idea of a common good, one that individuals
cannot achieve except in concert.
Wolffs purpose in describing these aspects of community is to
demonstrate that the idea of a "collective goal," and, therefore, of the
public interest, can be given coherent meaning. He does not attempt
to establish that individuals should pursue such goals, only that it is
possible for them to do so. But whether or not they should, the experience of everyday life reveals that many, perhaps all, people do.
Nevertheless, Wolffs argument fails to provide an account of the
public interest adequate for republican purposes.
For republicans, it should be recalled, the domain of politics is
limited to the public interest. Civic virtue requires that citizens put
aside their private interests when they enter the political arena. However, nothing in Wolff's account supports these restrictions. He offers
15.
R. WOLFF, THE POVERTY OF LIBERALISM 185 (1968).
16.
17.
18.
19.
Id.
Id.
Id.
Id.
at
at
at
at
185.
187.
190.
192.
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no reason to suppose that the public interest - which on his account,
is merely the interest (some) people have in certain kinds of shared
experience - is more worthy or more important than other interests
individuals may have. Nor does he suggest that it alone is a proper
subject of politics. Individuals do - at times and with differing intensities - have an interest in shared experiences, but there is no apparent justification for concluding that that interest is, as republicans
conceive the public interest to be, of overriding importance. As republicans employ it, to put the point somewhat differently, "the public
interest" is an evaluative concept. A purely descriptive account cannot
be adequate to explain what they mean by it.2
The various accounts of the public interest considered thus far the aggregation of private interests, an autonomous national purpose,
and Wolffs '"nterest in the shared experience of community" - are
substantive. Each looks to an end valued for itself. Contemporary
republican arguments often seem to point, instead, to a procedural
account, one that defines the public interest in terms of the rules and
institutions that govern public life. Even liberals, who have traditionally been skeptical of the concept, might find some versions of such
an account congenial. The public interest, a liberal might say, consists
of the set of rules and institutions that will maximize freedom, i.e.,
that will best enable individuals to achieve their ends. Those rules
and institutions are appropriately regarded as in the public interest
because the interest in them is common to all: they provide the background conditions everyone requires to pursue his or her particular
interests.21
20. Joseph Sax has advanced a position similar to Wolff's, arguing that individuals often
reveal a preference for collective decisions even when those decisions differ from the ones they
would have made as individuals. Like Wolff, Sax makes no claim that such preferences (or the
decisions made by collectivities) are in any way more worthy than other preferences individuals
may have. His sole purpose is to contend against the atomistic assumptions of those who argue
against collective decisions on efficiency grounds. See Sax, The Legitimacy of Collective Values:
The Case of the Public Lands, 5 U. COLo. L. REv. 537 (1985).
21. Thus, even the most extreme anti-statist welfare economist recognizes the need for
public definition and enforcement of property rights if individuals are to be able to pursue their
interests through the market. Liberal democrats, similarly, recognize that freedom of speech
and the franchise must be defined and protected if the political system is to operate properly.
Even David Truman, whose denial that there exists any 'totally inclusive interest" is notorious
in the literature of republicanism, found it necessary to introduce the concept of a "potential
interest group" to account for the common interest in defining and maintaining the "1rules of
the game." See Truman, supra note 6, at 51-52, 510-24.
Nevertheless, Truman seems correct in denying that there is a "totally inclusive" interest,
one that is common to all. The "rules of the game," as the critics of liberalism have rightly
insisted, are not neutral. Any set of rules and institutions will advantage some interests and
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CONTEMPORARY REPUBLICANISM
The cognate republican account would focus on the rules and institutions necessary to permit individuals to act as citizens: the public
interest, a modern republican might say, consists of the set of background conditions required if individuals are to participate fully in
public life.2 2 Because even civically virtuous citizens may disagree
about which rules and institutions best serve that goal, the initial
question that arises under this definition is how they are to resolve
their differences. Of course, citizens of a liberal state may also disagree, but for them the standard of decision is built into the liberal
definition of the public interest. Disputes about which rules and institutions are in the public interest may be resolved by ascertaining which
best promotes the capacity of individuals to achieve their ends. Republicans cannot resolve their differences in the same way because the
cognate republican account, depending as it does on the idea of citizenship, is not similarly complete. Citizenship defines a relationship to a
polity. Without some idea of the objects of the polity it seems impossible to say what rules and institutions would best enable citizens to
participate fully in its life.23
To say that the polity exists to serve the public interest merely
introduces a circularity. Although the circularity is not entirely vicious
it might be regarded as a way of saying the polity exists, at least
in part, to satisfy the desire for what Wolff called "rational community"2 - without further elaboration of the objects of the polity, we
have at best a very thin account of the public interest, one that fails
to suggest an adequate motive for individuals to put aside their private
interests in pursuit of the common good. 3 A procedural account, one
that defines the public interest solely in terms of the background
conditions necessary to permit individuals to participate fully in public
disadvantage others. A choice among them does not depend upon which serves the public interest
- i.e., an interest that in some sense is common to all - but upon their justifiability under
some moral theory. Cf. Sax, supra note 20, at 554.
22. Such a conception of the public interest is, of course, markedly different from that
postulated by earlier versions of republicanism in which participation in public life was not
regarded as critical. Burke's defense of virtual representation, for example, is intelligible only
upon the assumption that the public interest can be defined substantively. See H. PITKIN, THE
CONCEPT OF REPRESENTATION, 168-89 (1967).
23. Because of continuing disagreement about what is meant by human freedom, the liberal
definition of the public interest confronts a similar difficulty. Since liberals do not require a
definition of the public interest, however, the difficulty does not pose the same problem for
them as it does for republicans.
24. See Wolff, supra note 15, at 185; see also ARISTOTLE, Politics, bk. III, ch.6, in INTRODUCTION TO ARISTOTLE 549, 589 (AcKeon, ed. 1947).
25. See supra text accompanying note 20.
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life, merely shifts the inquiry to questions about the proper ends of
government in the republican vision.
II.
"The ultimate object of the state," according to the first republican,
"is the good life." 26 Although Aristotle's arguments in support of that
conclusion are unavailable to moderns, contemporary republicans generally seem to hold to the same idea. The object of republican politics,
as described by Professor Sunstein and his coeditors, is to select "the
values that ought to control public and private life." Or, as another
proponent recently put it in arguing the need for a revival of republican
ideas, "[w]hat is ultimately at issue is the radical question of what is
a worthwhile life." Modern man, is, however, deeply committed to
the view that there is not a worthwhile life toward which all must
strive, but a multitude of worthwhile lives and that each individual
should be free to fashion such a life for himself. Liberalism has to
that extent taken hold and is not likely to be easily dislodged.
Among contemporary republicans, Professor Michelman has been
especially sensitive to the deep-seated plurality of modern ideas about
the good life and to the need for republicanism to accommodate that
plurality if it is to be considered a serious alternative to liberalism.
Although his efforts to formulate a version of republicanism acceptable
to moderns are not explicitly cast in terms of the good life or the ends
of government, they appear to provide a rationale for politics of just
the kind that is needed to fill out a procedural account of the public
interest.
At the center of Michelman's argument is the idea of human freedom, a prerequisite of individual capacity to shape a worthwhile life.
Drawing on Kant, he maintains that "we are free only insofar as we
are self-governing, directing our actions in accordance with law-like
reasons that we adopt for ourselves, as proper to ourselves, upon
conscious, critical reflection on our identities (or natures) and social
situations."' Like other contemporary republicans, Michelman emphasizes that the constituents of freedom, so understood, cannot be
located exclusively within individuals. Our knowledge of ourselves and
our understanding of our interests are formed within a social matrix.
26.
ARISTOTLE,
supra note 24, at 549.
27. G. STONE, L. SEIDMAN, C. SUNSTEIN, & M. TUSHNET, CONSTITUTIONAL LAW 5
(1986) [hereinafter CONSTITUTIONAL LAW].
28. W. SULLIVAN, supra note 1, at 10.
29. Michelman, Traces, supra, note 8, at 26.
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CONTEMPORARY REPUBLICANISM
Self-governance, i.e., the governance of the self in pursuit of one's
own conception of the good life, thus requires engagement in the social
processes within which individuals shape their identities. Only by participating in the constitution of the social matrix within which the self
is formed can individuals be self-legislating. Moreover, "[n]ormative
reason ... cannot be a solitary activity. Its exercise requires knowledge, including self-knowledge, obtainable only by encounter with different outlooks in public argument." 30 These considerations lead
Michelman to conclude that:
Kantianism implies republicanism - self-government implies
citizenship - to all who conceive of the individual as in some
degree socially situated or constituted. This view of the
human condition implies that self-cognition and ensuing selflegislation must, to a like extent, be socially situated; norms
must be formed through public dialogue and expressed as
public law.31
Michelman thus offers a rationale for public life that is simultaneously responsive to modern individualism and to republican emphasis
on the social bond. In doing so, he provides a motive not only for
active citizenship, but for civic virtue. Willingness to put aside private
interest is not abnegating, but self-constituting. Since the good life
can be sought only in concert with others, to act in furtherance of the
common good - understood as the set of rules and institutions necessary to permit all to participate fully in public life - is also to act in
one's private interest - understood as the freedom to pursue a worthwhile life. Private interest, rightly understood, and the public interest
are not separable, for the full participation of others in public life is
a necessary condition of one's own freedom.
The striking feature of Michelman's argument is what one might
call, were it not for the pejorative connotation the term has acquired,
its "totalitarian" conception of politics. If, as he maintains, "self-government implies citizenship" and "norms . . . must be expressed as
public law," 2 it seems to follow that all of life must be politicized. In
the end, therefore, Michelman joins other contemporary republicans
in embracing a conception of politics that is pervasive and all-encompassing. In this respect, of course, republican arguments track a theme
common to recent critics of liberalism: the denial of a divide between
30.
Id. at 27; see also Michelman, Voting Rights, supranote 10, at 447-48.
31. See Mlichelman, Traces, supra note 3, at 27 (footnotes omitted).
32.
Id.
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public and private life. As Catharine MacKinnon succinctly puts it,
"the private is the public . . . ."
The common justification for this extension of the domain of politics
is that individuals are socially constituted. However, just how the
premise connects to the conclusion is unclear. The idea seems to be
that because the self is socially constituted, individuals can be selflegislating only to the extent that they participate in the common
project of shaping the social materials from which the self is constructed. Politics, however, is only one form of human association.
Why, then, is it the form that participation must take? And even if
"norms must be formed through public dialogue," as Michelman maintains, why must they be "expressed as public law,"-" rather than as
religious tenets or as ethical precepts whose origins lie in the multitude
of other associations in which individuals participate? A possible answer is that only politics is sufficiently powerful and sufficiently open
to all to provide a forum adequate to the task. Yet, surely the adequacy
of a forum to play the role that Michelman assigns to politics depends
upon the opportunities for meaningful participation that it realistically
affords. Despite the potential reach of politics, therefore, one wonders
whether citizenship in a nation of 250 million or even in a city of one
hundred thousand offers possibilities for participation as meaningful
for individuals as is membership in one or another or several of the
many intermediate associations that exist in a pluralistic society.
The scale at which politics necessarily occurs in modern industrial
societies is not the only reason that it is often less satisfactory than
other forms of association as a vehicle for collective self-determination.
The social matrix within which the self is formed is vast and multidimensional. None of us can explore more than a small fraction of the
possibilities it offers, and if for no other reason than a finitude of time
and talent, we are all required to take as given - as constraints we
have had no part in creating and that often lie beyond our consciousness
a very large part of the cultural substance within which we shape
our lives. If freedom requires more, we are to that extent unfree.
These limits upon our capacity for self-legislation are, of course,
also limits upon our ability to join with others in fashioning the terms
of social life. The possibilities for individual self-determination are,
therefore, not to be measured against the theoretical opportunities
that politics offers to join with others in constituting the entirety of
social life, but are to be found within the narrower compass within
33.
34.
C. MAcKINNON, FEMINISM UNMODIFIED
Michelman, Traces, supra note 3, at 27.
100
(1987).
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which actual lives are lived. Within those boundaries, other forms of
association - familial, religious, social, educational, cultural, economic,
and others that seem to naturally spring up in a pluralistic society may provide greater opportunity to participate in forging the understandings and norms most important in a particular life. Though none
may have the theoretical potential to reshape society, they do offer
advantages such as accessibility, immediacy, and affinity that will
often make them preferable to politics in the effort to acquire an
understanding of and a measure of control over our lives.
Contemporary republicans are not unaware of the importance of
intermediate structures. Indeed, calls for strengthening such structures are a staple of recent republican writing. What seems not to
have been noticed, however, is the extent to which the existence of
vital intermediate structures undermines the claim that politics must
be pervasive and all-encompassing. A possible reason for that oversight
is the tendency of republican writers to regard intermediate structures
as merely auxiliary to politics, valuable because they "nurture citizenship" or because they play a role "in the cultivation of republican
virtues."' , But it is not obvious why intermediate forms of association
are relegated to so subsidiary a role. To the extent that they offer
individuals an opportunity to participate in shaping that part of the
social fabric that most concerns them, intermediate associations are a
genuine alternative to politics. For that reason, the premise that the
self is socially constituted does not self-evidently lead to the conclusion
that politics must be pervasive and all-encompassing. Further argument is needed to establish that the domain of politics must be that
extensive.
Whatever doubts may exist about the justification for conceiving
of politics as republicans do, the objections to doing so are perfectly
clear. A politics that can penetrate the lives of its citizens as deeply
as republicans appear to contemplate can as readily be stifling and
tyrannical as liberating. Indeed, on the evidence of history, one might
think that the former is more likely. Republicans are more sanguine
about the prospects, but the justification for their optimism is by no
means evident.
Reliance seems to be placed chiefly on civic virtue. The idea that
politics can be cleansed of private interest will seem to many a rather
heroic assumption. Ancient republics were not notably successful in
35. See W. SULLIVAN, supra note 1, at 223; Sunstein, Beyond the Republican Revival,
97 YALE L.J. 1539, 1578 (1988); see also Michelman, Law's Republic, 97 YALE L.J. 1493,
1530-32 (1988).
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the effort, and it is not immediately apparent what grounds there
might be for supposing that we are more likely to succeed. Moreover,
as Don Herzog observes, it is unclear how we are to effect the transition from an unvirtuous citizenry to one devoted entirely to the common good.3 6 Assume, however, that these difficulties can be overcome,
that the problems of creating and sustaining a virtuous citizenry have
been solved. What reason is there to suppose that republican politics
will yield a tolerant society, one open to widely varying conceptions
of the good life? The reliance placed upon civic virtue appears to rest
upon the premise that private interest alone accounts for the abuse
of politics. But as Madison argued in The Federalist,37 the tendency
to employ governmental power for oppressive purposes is rooted in
other sources also: "A zeal for different opinions concerning religion,
concerning Government, and many other points, as well of speculation
as of practice,... [have] divided mankind into parties, inflamed them
with mutual animosity, and rendered them much more disposed to
vex and oppress each other than to co-operate for their common
good." -' Because these "passions," as Madison called them, do not
appear to have diminished during the past two centuries, it would be
helpful to know what resources republican politics would draw upon
to control them.
Doubts about the adequacy of those resources are magnified by
the uncertain status of intermediate associations in a republican regime. Vital intermediate associations, capable of standing between
otherwise isolated individuals and a potentially overreaching state,
have long been recognized as an important safeguard of individual
freedom, in part because they provide information and support for
ways of life and thought that differ from those preferred by whoever
wields official power and in part because they offer an alternative to
an enervating dependence on government.3 9 Although contemporary
republicans generally have been sensitive to the importance of intermediate associations, a question remains as to whether robust private
associations can survive within the limitless politics of republicanism.
An affirmative answer to that question depends upon more than good
intentions. It also requires a willingness to accept the conditions under
36. Herzog, supra note 2, at 484.
37. THE FEDERALIST No. 10 (J. Madison) (J. Cooke ed. 1961).
38. Id. at 58-59. For a more complete discussion of Madison's views on the sources of
tyranny, see D. EPSTEIN, THE POLITICAL THEORY OF THE FEDERALIST 59-81 (1984); M.
WHITE, PHILOSOPHY, THE FEDERALIST, AND THE CONSTITUTION 55-81 (1987).
39. See generally R. NISBET, THE QUEST FOR COMMUNITY (1953).
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which private associations can prosper. Whether that willingness
would exist in a regime of republican politics seems doubtful at best,
for the tendency of republicanism, especially prominent in recent interpretations, is to reinforce trends in modern society that threaten
to sustain private institutions as meaningful
the conditions necessary
40
forms of association.
One of the animating concerns of contemporary republicans is private power. It is, at least in part, responsible for their insistence that
politics - i.e., public power - must be coextensive with social life.
Power, however, is an inescapable incident of autonomy, and substan-
tial autonomy, in turn, is necessary for intermediate institutions to
thrive. The price of robust intermediate associations, then, is a willingness to permit them to behave in ways that differ from and are perhaps
directly contrary to those that the political order might prefer. That
is a price modern democracies are increasingly unwilling to pay, especially in the economic sphere, but certainly not there alone.4 1 Contemporary republicanism, in equating the social and the political, eliminates an indispensable resource - a conception of the private - for
limiting that trend. Without a conception of the private, a realm of
40. On the forces responsible for these trends, see the classic and prescient analysis in A.
DE TOCQUEVILLE, II DEMOCRACY IN AMERICA 287-333 (Bradley ed. 1945) (1840).
41. See, e.g., Bowers v. Hardwick, 478 U.S. 186 (1986) (upholding statute criminalizing
consensual homosexual sodomy); Roberts v. United States Jaycees, 468 U.S. 609 (1984) (upholding statute prohibiting civic organizations from excluding women); Graves City College v. Bell,
465 U.S. 555 (1984); and Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, 102 Stat.
28 (1988) (colleges and universities whose students receive federal financial assistance subject
to various federal anti-discrimination requirements); Planned Parenthood Ass'n v. Danforth, 462
U.S. 476 (1983) (minor's right to abortion may not be conditioned upon parental consent); Bob
Jones Univ. v. United States, 461 U.S. 574 (1983) (upholding denial of tax exempt status to
university that, on religious grounds, prohibited interracial dating and marriage by students);
Terry v. Adams, 345 U.S. 461 (1953) (dominant political organization may not exclude persons
on racial grounds); Gay Rights Coalition v. Georgetown Univ., 536 A.2d 1 (D.C. 1987) (religious
institution whose tenets forbid homosexual practices may not discriminate on the basis of sexual
orientation); Under 21 v. City of New York, 108 A.D.2d 250, 488 N.Y.S.2d 669 (App. Div.
1985) (upholding mayor's executive order requiring municipal contractors, including religious
organizations whose tenets forbid homosexual practices, to pledge they would not discriminate
on the basis of sexual orientation); Labor Management Reporting and Disclosure (Landrum-Griffin) Act of 1959, 29 U.S.C. § 401 (1982) (extensive regulation of unions' internal affairs with
consequences extending well beyond union's economic role); N.Y. Dom. Rel. Law §72 (McKinney
1977) and similar legislation in other states conferring visitation rights upon grandparents.
As these citations suggest, political interference in the internal affairs of private associations
will always be justified in the name of a "higher" good - freedom, equality, fairness, or
whatever. But if the political community's conception of the good is routinely to prevail, or is
to prevail at all critical points, intermediate associations lose the capacity to generate and sustain
alternative conceptions of the good.
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autonomy from politics, it is not apparent what resources a republican
regime might draw upon to avoid transforming intermediate associations into agents of state power.4
III.
"Deliberation" is another important term in the republican lexicon,
one employed both to describe the process by which political decisions
ideally would be made in a republican regime and to differentiate
republicanism from liberalism. As used by republicans, it denotes not
merely thoughtful consideration, but a collective process by which free
and equal individuals, in a spirit of mutual respect, join in a search
for a reasoned decision, "one that all can accept as a good-faith resolution,' ' 43 concerning an issue posed for social choice.4 Although the
idea of deliberation is a good deal easier to understand than the republican conception of the public interest - every reader is bound to
have had at least some experience with it - the extent to which
republicans rely on it raises a number of questions. Before turning to
those questions, it will be useful to consider briefly the recurrent claim
that the commitment to deliberative politics distinguishes republicanism from liberalism. The stark terms in which the contrast is
customarily drawn serve more to obfuscate than to clarify the real
difference between the two approaches to politics. More significantly,
it cloaks the issues that require attention in assessing whether republicanism offers a useful way of thinking about political life in the
circumstances of modern societies.
Republican descriptions of liberalism customarily begin with the
assertion that liberals regard individual interests as exogenous to politics. Individuals, that is, come to politics with interests that have been
shaped outside the political process, seeking to employ it - just as
they would employ the market - to further those interests. Interactions among individuals are, therefore, strategic: participants in the
process negotiate, bargain, and compromise, but they act always to
further the interests with which they entered the process. In a repub-
42.
As pluralists from de Tocqueville to the present have argued, liberalism faces a similar
problem. To the extent that it focuses attention exclusively on individuals - whether in the
name of freedom, equality, or fairness - it contains within itself the seeds of its own destruction,
threatening the maintenance of social conditions necessary to sustain freedom. See A. DE TocQUEVILLE, supra note 40; R. NISBET, supra note 39.
43. Michelman, Voting Rights, supranote 10, at 447.
44. It is worth recalling that in a republican regime the issues posed for social choice extend
to "selecting the values that ought to control public and private life." CONSTITUTIONAL LAW,
supra note 27, at 5.
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539
lican regime, by contrast, individuals do not regard their interests as
exogenous to politics. They recognize that as they search with their
fellow citizens for the common good, they may come to perceive their
interests quite differently from the way that they did at the outset.
Participation in politics is, therefore, potentially a transforming experience. Its function is not merely to serve values, but to shape them.
To cast the difference between liberalism and republicanism in
these terms is, however, merely to caricature the former. Nothing in
liberal theory requires a denial of the obvious, that politics may be a
process of collective deliberation in which the participants, through
reasoned argument, attempt to persuade and are open to persuasion
by one another. Nor does liberalism deny that collective deliberation
may assist in locating common ground among individuals with differing
interests or views. Nor, finally, is there any reason that liberals must
deny that participation in politics may be transformative, leading individuals not merely to compromise, but to alter their initial objectives. 45
Liberalism's central commitments, individual freedom and (as a corollary) limited government, simply do not depend upon an assumption
that all interests are exogenous to politics or upon a market model of
the political process. 46 Indeed, to the extent that collective deliberation
facilitates democratic government and enlarges the capacity for intelligent choice, liberals have every reason to prize it.
The real difference between liberals and republicans lies elsewhere,
not in disagreement about the value of collective deliberation in politics, but in discrepant assessments of whether it can be counted upon
to resolve all social conflict in modern industrial societies. Liberalism's
insistence upon a restricted political sphere rests upon an assessment
45. Although republicans at times appear to assume otherwise, see, e.g., Michelman, Law's
Republic, supra note 35, at 1512, the possibility that collective deliberation may lead participants
to uncover previously hidden common ground or to a new understanding of their interests does
not depend upon their having entered the process in a search for their common good or even
upon their becoming aware that they share one. The process may be educational even though
all remain intent upon their private interests throughout. No more is required than openmindedness.
46. A number of economists and political scientists have attempted to show that a market
model explains a good deal of observed political behavior. See, e.g., A. DowNs, AN ECONOMIC
THEORY OF DEMOCRACY (1957). But such efforts plainly have no bearing on the question
whether liberalism as a political theory is committed to the view that politics is merely a process
by which individuals act strategically to further exogenous interests. In their most recent
writings, both Professors Michelman and Sunstein, the legal scholars most prominently identified
with the effort to revive republican ideas, have come to accept that liberalism is open to a
deliberative conception of the political process. See Michelman, Voting Rights, supranote 10, at
448-50; Sunstein, supra note 35, at 1567.
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that might be considered pessimistic, but is more fundamentally only
skeptical: given the stakes, it seems prudent to insist that some matters remain beyond the reach of government rather than to bet all on
the success of deliberative politics. Limited government is a hedge
against the breakdown of deliberative politics, insurance against the
related risks that politics might be called upon to bear an excessive,
potentially destablizing load and that governmental power might come
to be employed oppressively. The source of this skepticism is readily
apparent. Liberalism arose in response to an erosion of the intellectual
and social conditions that might at one time have made it plausible
to look exclusively to collective deliberation to resolve social conflict.
Republican thought, as I observed earlier, was generally anticommercial and premised upon small, homogenous populations occupying
a limited territory. It was closely associated with natural law. In one
version or another it was aristocratic, exclusionary, or militaristic.
Contemporary republican writers treat each of these elements of republican thought as excess baggage that can be discarded without
affecting what they regard as attractive about republicanism and therefore take to be its core. The question, however, is not whether any
one or two of the elements can be discarded, but whether collective
deliberation can play the role republicans assign to it if all of them are.
Though each serves somewhat differently, the common tendency
of all these now embarrassing elements of traditional republicanism
is to facilitate collective deliberation and increase the prospects that
the product of those deliberations will be widely, if not universally,
accepted. They do so by narrowing the range of politically relevant
interests and outlooks, by increasing the likelihood that participants
will be bound by ties of family and friendship, and by fostering social
stability, thereby enabling participants to deliberate within the settled
ways of a community. An acceptance of natural law also plays a role,
not only by encouraging the belief that there are right answers to the
most fundamental questions, a belief that is itself an important instrument of social integration, but also by making it possible for participants, and perhaps even the excluded, to suppose that the former
have arrived at those answers.
Extended argument is hardly necessary to make the point that the
intellectual and social circumstances of modern life differ profoundly
from those traditionally thought necessary to undergird republicanism's reliance upon collective deliberation. The capacity of language to communicate meaning, presumably a prerequisite to collective
deliberation, has been put in doubt. Republican belief in natural law
has, in important segments of the population, given way to the belief
that truth is merely a matter of perspective and right only a synonym
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of power.47 The relative stability of a land-based economy has yielded
to the perpetual motion of a commercial economy. The range of relevant interests and outlooks has greatly widened as a consequence of
immigration and of political participation by previously subordinated
segments of the population. And, most obviously, numbers have increased so dramatically that the small governmental units have populations well beyond that which might permit citizens to form the bonds
on which republicanism was premised. At the same time, technology
has both loosened the bonds once forged by geographic proximity and
increased interdependence across vast distances.
Liberalism is often criticized for its alleged failure to recognize the
social context of politics. It is somewhat surprising, therefore, that
the critics have given so little attention to whether the intellectual
and social circumstances of modern life will support a political regime
of the kind they envisage. In raising that question, I do not mean to
suggest that collective deliberation is not possible in the circumstances
of contemporary life. A political community could not survive if its
citizens could find no common language in which to discuss the issues
they confront, if a sufficient number did not share at least some interests and ideals, and if civic virtue were entirely absent. 4 8 The issue
is not whether these prerequisites for collective deliberation exist at
all, but whether they are present in the full measure required to
justify the limitless politics of republicanism.
Republican politics, as Professor Sunstein rightly emphasizes, is a
politics of consensus. 49 It presupposes a society of sufficiently thick
common understandings and sufficiently agreed upon fundamentals
that sound judgment can be recognized and honored. Ours, however,
is a society in which a representative member of an important segment
of the intellectual community can employ the idea of "sound judgment"
ironically, even mockingly.5 Deep divisions mark our communal life,
divisions of sufficient magnitude that at times even those who agree
upon an outcome cannot find a common frame of intellectual reference
for doing so. 51 What is required, therefore, is an account of how collective deliberation can overcome these divisions. Is the assumption
47. One need not embrace these positions to recognize that their widespread acceptance
has important implications for the possibility of deliberative politics.
48. "Civic virtue," as used here, means something quite different from what it means to
republicans, not single-minded devotion to the common good, but a disposition to act for other
than narrowly selfish reasons and in accordance with moral principles.
49. Sunstein, supra note 35, at 1554.
50. See Parker, In Mernoriam: J. Skelly Wright, 102 HARv. L. REV. 367 (1988).
51. See, e.g., C. MAcKINNON, supra note 33, at 93.
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that it will reveal objectively right answers to the questions on which
citizens disagree? 52 Or is it that, at root, the differences do not reflect
fundamental, irreconcilable cleavages of interest or moral belief? And
if neither of these, on what grounds does the belief rest that republican
politics will yield results that are both broadly accepted and adequately
respectful of the differences among us?
Any account of how the divisions can be overcome must deal with
a number of rather mundane concerns. The first is the problem of
time. Politics can be viewed as a form of moral education,6 a grand
seminar enduring through time, but it is not only that. It is also a
process through which decisions are made about the use of governmental power. Accordingly, even if collective deliberation is theoretically
capable of surmounting the deep divisions within modern societies whether by revealing objectively right answers, by disclosing that our
interests and values are not irreconcilably divergent, or by some other
means - the question remains whether it can do so within the time
realistically available for making political decisions. In the long run,
to be sure, no political decision is final. The discussion continues. But
in the long run, as Keynes reminded us, we are all dead. From the
perspective of the individual, what counts are the uses to which governmental power will be put here and now.
Time poses still another problem for republican reliance upon collective deliberation, one that, like the first, exists even if it is assumed
that collective deliberation is theoretically capable of enabling citizens
to overcome their initial differences. Deliberative politics are open
only to those who have the time to study issues and to engage in
personal exchange with those who hold different views. Only time
spent in these activities justifies hope that disagreements may be
eliminated or narrowed by information, that reasoned argument may
occur, and that, failing persuasion, citizens may be able to understand
the reasonableness, if not the rightness, of positions taken by other
citizens and the significance that the latter attach to those positions.
Not surprisingly, therefore, traditional republicanism generally assumed that citizens who held political power would be able to devote
52.
On the possibility of objectively right answers absent reliance upon natural law, see
Sandalow, Judicial Protectionof Minorities, 75 MICH. L. REv. 1162, 1166-72 (1977).
53.
Professor Michelman's continuing efforts to identify strands of republican thought rele-
vant to contemporary life have led him to place increasing emphasis upon this aspect of politics.
See Michelman, Traces, supra,note 3, at 31-33; Michelman, Voting Rights, supranote 10. Despite
the force of his arguments, the question remains whether, in light of the considerations advanced
in the text, wisdom might not require that we rely upon other sources for some part of our moral
education.
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substantial time to public affairs, often because it was also assumed
that their material needs would be met by the labor of others. 4 A
political theory for modern times plainly cannot rest upon any such
assumption, most obviously because of the commitment to universal
political rights, but no less significantly because of another commitment, the freedom of individuals to transcend social roles - including
the role of citizen - in pursuit of individually determined ends. 5
Unless citizens devote adequate time to the process, however, it is
difficult to see how collective deliberation can be expected to overcome
the differences among them.
Time is not the only obstacle to widespread citizen participation
in the process of collective deliberation. The range and complexity of
issues posed by contemporary life and the practical and theoretical
knowledge required to understand them also stand in the way. Republicanism implicitly assumes that the issues posed for social choice are
comprehensible to those who wield political power. The problems of
premodern life need not be minimized to appreciate that the scale at
which they occurred and the tools available for understanding them
tended to bring them within the range of human experience to a far
greater degree than is possible today. But unless the issues that politics addresses are broadly understood, how is collective deliberation
to achieve reconciliation of divergent views among the citizenry?6
54. The Anti-Federalists are the most notable exception, but they were, in thought as well
as in time, at a point of transition between republicanism and liberalism. Although their language
and in some measure their ideas were drawn from republican sources, they were, as Herbert
Storing observed, "liberals - reluctant and traditional, indeed - in the decisive sense that
they see the end of government as the security of individual liberty, not the promotion of virtue
or the fostering of some organic common good. The security of liberty does require, in the
Anti-Federalist view, the promotion of civic virtue and the subordination . . . of individual
interest to the common good; but virtue and the common good are instrumental to individual
liberty, and the resemblance to preliberal thought is superficial." H. STORING, WHAT THE
ANTI-FEDERALISTS WERE FOR
83 n.7 (1981).
The liberalism of the Anti-Federalists is reflected also in their commitment to limited government. To quote Storing once again: 'The Federalists and the Anti-Federalists agreed that
government is properly directed to the pursuit of limited ends, namely the security of individual
rights; and there was very little debate about limited government in this fundamental sense ......
Id. at 53.
55. Unlike workers in a communist society, who we are told will "hunt in the morning,
fish in the afternoon, rear cattle in the evening, [and] criticize after dinner," see K. MARX &
F. ENGELS, THE GERMAN IDEOLOGY 53 (C.J. Arthur, ed., 1973), the citizens of a republican
regime would presumably raise funds for a "pro-choice" or "anti-abortion" campaign in the
morning, debate trade policy in the afternoon, and study crime control in the evening. And
that's only on Monday.
56. A possible response to some, but by no means all, of the problems I have suggested
is to shift the forum for collective deliberation from the citizenry at large to another institution.
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There is, in brief, an impressive array of reasons to question
whether collective deliberation can, in the circumstances of contemporary American life, overcome the many and deep differences among
citizens about "the values that ought to control public and private
life." 57 Perhaps those who seek a revival of republican ideas can answer
those questions, but to the extent that they cannot, there appears to
be no alternative to accepting that politics must be, not just occasionally but often, a process of negotiation, bargain, and compromise
among citizens (and their representatives) unable to achieve accord
on any other basis. More fundamentally, in the absence of such answers, a continuing need exists to address the problems of ensuring
against a stability-threatening overload of the political system and of
ensuring that neither the absence of civic virtue nor its excess leads
to the oppressive use of governmental power. Liberalism represents
an attempt to deal with both problems. It is not yet clear how a
revival of republicanism would aid us in doing so. 5
The arguments advanced by both Professors Michelman and Sunstein tend toward such a conclusion, though each in a different way. Though Sunstein "[would) attempt to design political
institutions that promote discussion and debate among the citizenry," Sunstein, supra note 35,
at 1549, he appears mainly to contemplate that Congress, strongly disciplined by the Supreme
Court, will be the most important forum for collective deliberation. See Powell, Reviving Republicanism, 97 YALE L.J. 1703, 1708 (1988). Michelman looks more directly to the Supreme Court,
calling upon it to represent to us - within the limits of constitutional tradition, but unembarrassed by its insulation from the processes of popular control - the possibility of collective
deliberation. See Michelman, Traces, supra note 3, at 66-77. (Whatever differences Michelman
and Sunstein may have with constitutional scholars writing in the liberal tradition, they clearly
share with most of the latter an agenda that includes finding justifications for enhancing judicial
power.).
Michelman's and Sunstein's arguments deserve more extended consideration than I can give
them here. One point seems worth making, however. Collective deliberation cannot be a vicarious
experience. Its transformative potential depends upon participation in the process. For Congress
and the Supreme Court to behave as Michelman and Sunstein propose must, therefore, increasingly widen the distance between the governors and the governed.
57. See CONSTITUTIONAL LAW, supra note 44, at 5.
58. In his most recent exposition of the relevance of republicanism to contemporary American politics, Professor Sunstein writes, somewhat surprisingly, that "some issues - religion is
a familiar example - should be entirely off-limits to politics. It would be fanciful to suggest
that different conceptions of the good life can or should always be mediated through politics.
The republican position is not that every issue is subject to political resolution; it is instead
that some questions can yield general agreement through deliberation." Sunstein, supra note
35, at 1555.
This is a welcome recognition of the limits of politics in contemporary society, one that leaves
Sunstein comfortably within the liberal camp, see supra text accompanying notes 45-46, but I
am unable to reconcile it with his continuing assertion that "individual preferences should not
be taken as exogenous to politics." Sunstein, supra note 35, at 1549; see Powell, supra note 56,
at 1708-09.
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